Alleged multi-murderer Aaron Schaffhausen entered into the courtroom prior to the start of a motion hearing for Schaffhausen at the St Croix Government Center in Hudson, WI morning November 21, 2012. (Pioneer Press: John Doman)

Aaron Schaffhausen's attorney missed a deadline to notify the court of a possible "insanity" plea, leaving unanswered whether such a defense will be pursued.

Schaffhausen's public defender, John Kucinski, said a notice of a possible plea of not guilty by reason of mental disease or defect could not be filed by Friday, Dec. 14, as he has not decided if the defense will take that route. Kucinski added he has yet to receive all the evidence needed to make that determination.

"We still have to do some work to figure out whether they can convict somebody before I do anything like that," he said Friday.

Schaffhausen, 35, is accused of killing his three daughters in River Falls -- killings the prosecution has suggested were done to hurt the girls' mother, Schaffhausen's ex-wife.

Prosecutors have argued that if the defense is to pursue an insanity plea, it should say so sooner rather than later. During a Nov. 21 hearing in St. Croix County Circuit Court, Judge Howard Cameron set Dec. 14 as the deadline for the defense to make notice of such a plea.

Kucinski, however, said he did not think it was a "hard" deadline.

"Out of all the murder cases I've done, nobody has set all these little deadlines," he said, adding he didn't know if there would be any consequences for missing Friday's deadline.

Kucinski repeatedly has asked for more time in the case, arguing the public defender's office has fewer resources than that of the prosecution, which is being handled by attorneys from both the Wisconsin Department of Justice and St.

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Croix County district attorney's office.

A trial is scheduled for April.

Schaffhausen is charged with three counts of first-degree intentional homicide and one count of attempted arson. He stood mute at an arraignment hearing in August, effectively pleading not guilty.

Should a plea of not guilty by reason of mental disease or defect be entered and Schaffhausen is convicted, the proceedings would go into a second phase in which the court would hear arguments on Schaffhausen's mental health.

Unlike the first phase of the trial, the burden of proof would lie with the defense, which would have to show Schaffhausen was not responsible for the killings due to his mental state.

The shifting of the burden of proof from the prosecution to the defense can make such a case difficult for a defense attorney to win, said Keith Findley, an assistant professor of law at the University of Wisconsin Law School in Madison.

"It's not common, and it's successful even less frequently," Findley said of the insanity plea, calling it a "tall hill to climb."

"You have to show that there's a pretty serious mental illness going on that makes it so you don't even understand that what you're doing is wrong, or if you do understand it, you can't control yourself," he said.

In a court filing Dec. 7, prosecutors noted the defense has retained at least three mental health experts to assist in the case. Prosecutors said jail records show the experts interviewed Schaffhausen for a total of about 19 hours over the past several months.

If Schaffhausen were to be convicted of any of the first-degree intentional homicide charges but able to prove he's not guilty by reason of mental disease or defect, he automatically would be sentenced to life in a mental health institution.

"The focus then is not on punishment; the focus is on treatment," Findley said.

And a conditional release could be possible at some point if Schaffhausen were able to prove he has responded to treatment and is not a danger to anyone, Findley added.

A conviction on one of the homicide charges without a successful insanity plea would result in an automatic sentence of life in prison. It would be up to the court's discretion whether Schaffhausen would be eligible for an eventual release, Findley said.

Schaffhausen is accused of cutting the necks of Amara, 11, Sophie, 8, and Cecilia, 5, during a visit to their River Falls home July 10. Cecilia also was strangled, the complaint states.

Schaffhausen, of Minot, N.D., allegedly called his ex-wife, who was away at the time of the killings, to say he killed the girls, according to the criminal complaint.